On March 26, 2010, Judge Robert Morin of the Superior Court of
the District of Columbia sentenced Gilbert Arenas to probation,
community service, and 30 days in a halfway house, rejecting the
prosecutors' request for jail time. O'Melveny partner Ken
Wainstein and associate Jeff Nestler represented Arenas, a
professional basketball player with the NBA's Washington
Wizards team.
Recently, several high-profile professional athletes have faced
potential jail time over criminal infractions, with mixed results.
This result for Arenas is noteworthy because Wainstein and the
O'Melveny team, members of both the Sports Practice and White
Collar Practice Groups, were able to help the Wizards star avoid
that fate through a strategy that included a detailed sentencing
memorandum that presented a compelling portrait of Arenas' good
character, buttressed by persuasive supporting documentation. Also
key to the outcome was the presentation by O'Melveny's
lawyers at the sentencing allocution, which effectively responded
to the new allegations in the government's withering 26-page
memorandum and persuaded the Court to reject the prosecutors'
strong plea for jail time.
The case began in January 2010 when Arenas was charged with, and
pled guilty to, carrying a pistol in the District of Columbia
without a license. The charge arose out of an incident in December
2009 in which Arenas had four unloaded handguns in the Wizards'
locker room in Washington, D.C. Two days prior to the incident,
Arenas and teammate Javaris Crittenton had argued on the team
airplane and exchanged "threats" to shoot each other,
including a "threat" by Crittenton to shoot Arenas in his
surgically-repaired knee. That next Monday, Arenas arrived at
practice and laid out his four unloaded handguns on
Crittenton's chair with a note that read "Pick 1."
When Crittenton walked into the locker room, Arenas indicated he
was providing him the guns to carry out his "threat."
Crittenton responded by tossing Arenas' guns aside, saying that
he did not need to use them, and pulling a gun of his own out of
his locker.
The incident ended there, but team management learned about it and
both Arenas and Crittenton were questioned about whether they had
guns in the locker room. Arenas admitted having guns and turned
them over, while Crittenton denied the allegation. Arenas
self-reported to the authorities, and quickly pled guilty to a
felony gun charge.
In preparation for sentencing, Wainstein and Nestler submitted a
detailed sentencing memorandum advocating for a sentence of
probation and community service. The goal of their memorandum was
to provide the court with a clear understanding of Arenas'
character and to dispel any mischaracterizations arising from the
high-profile nature of the case. Their memorandum included nearly
35 letters of support from individuals with experiences ranging
from brief encounters in which Arenas was generous with his time
and attention, to long-term friendships that demonstrated the full
depth of his loyalty and character.
Only three days before Arenas' sentencing, the government filed
a 26-page sentencing memorandum asking the court to draw virtually
every inference against Arenas. The memo argued that Arenas had
acted maliciously — and not out of a misguided effort to
play a prank — in placing the guns on Crittenton's
chair; that he had tried to orchestrate a cover-up to protect
himself; and that he had not accepted responsibility or shown true
remorse about his offense. The press gave broad coverage to the
government's aggressive memorandum and detailed all of the new
allegations.
The government's late filing put the defense at a significant
disadvantage and added to the importance of O'Melveny's
performance at the sentencing allocution. During sentencing,
Wainstein had the opportunity to respond to the government's
memorandum, in order to rehabilitate Arenas in the eyes of the
judge and the public and to correct the inaccurate perception it
had created.
In presenting his sentence, the judge sided with the defense
regarding the critical mitigating factors in the case. Judge Morin
found that Arenas' intent was not violent, and he rejected the
government's cover-up argument, finding that "the
so-called cover-up was not an attempt... to avoid responsibility,
but an attempt by [Arenas] to take full responsibility for the
incident... and absolve [Crittenton]...." He further told
Arenas "[y]ou've demonstrated genuine remorse for what
you've done and how it's affected your community and the
people who have looked up to you." Finally, Judge Morin cited
the many letters attesting to Arenas' service to the community
and charity to others over the years, explaining that "[t]he
individuals who have written, who you have helped... show that at
core you're a decent person, capable of great generosity and
kindness — especially to young people who are most in
need." Rejecting the government's request for jail time,
he then imposed a probationary sentence with 30 days in a halfway
house and a community service component that takes advantage of
Arenas' ability to use this experience to teach youth about the
dangers of firearms and violence.
The sentence came as a surprise to the prosecutors, as well as to
many media outlets who had predicted that Mr. Arenas would serve
jail time. After sentencing, the media praised the O'Melveny
team's impressive work with headlines such as "Wainstein
Keeps Gilbert Arenas Out of Jail."
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